Sunday, February 22, 2009

I don't wonder how lawyers went from respected members of society to just above used car salesman, or is it below?

I may be wrong, but I believe the demise of lawyers came with the attraction to the profession by money hungry college students. Laugh if you will, but the popularity of LA Law drove thousands of applications to law schools around the country. Three years of school, BigLaw job, BigLaw office, mahogany furniture, BigLaw artwork, swank restaurants, exciting clients and office politics, and a ton of cash. Oh yeah, and some research, work, and sweat. But I digress.

Throw in advertising with the thousands of lawyers in the practice today that see law as a means to cash, and you get cut throat competition, stupid lawsuits, bad press, and other reports of lawyers doing idiotic things.

I went to law school during this "LA Law" time, the early nineties. Thankfully none of the BigLaw recruiters would schedule me for an interview, and I "had" to fulfill my desire to be a criminal defense lawyer by going to the public defender's office.

So I look at this recession. I read daily about the "lawyers" at BigLaw being laid off. The solo real estate lawyers and other small firm lawyers who find themselves with a non-paying client list, are going away quietly, or working on matters they know little about.

I cannot imagine being a lawyer, going through a total of 19 years of education, being plucked out of school for a plum job, and a few years, or 10 years, or at any time, being told "goodbye."

Obviously the first thought is to get a job. Bills, have to be paid.

The troubling thought most often with BigLaw layoffs is "what can I do?"

Working on pieces of cases, sitting on westlaw or lexis, outlining depositions, do not make a practitioner. A practitioner takes a client and handles their case from start to finish. BigLaw avoids teaching that process. When you have 4 lawyers on a case, it's hard to understand the whole picture.

In my opinion, the positive side of this lawyer recession is that those that entered the profession without any desire to be a "lawyer," may leave.

I say go, do something else.

If you're only desire is to make money, make it elsewhere. Start a business. Let's see if a clearing out of non-committed tools (and maybe many of them didn't strive to be that in the first place, but let it happen) helps raise the image of lawyers a bit.

Law is a business, now, because it has become that. It used to be a profession, with professionals committed to justice, individual rights, and resolving disputes.

Wednesday, February 18, 2009

I buy a lot of wine, both locally, and online. I buy locally to help out small merchants who are struggling to make it in the wine business, and I buy online for the same reason everyone else buys anything online - to find the best deal, and maybe save tax and get some free shipping.

I'd like him to do well on twitter, so I respond with what I normally pay for that wine:

c'mon $135 free shipping.

He considers a free shipping offer and then responds:

Caymus won't let me sell for under $150 or they won't sell to me. As for shipping it's $1/btl by the case.

OK, that's fair. Most standard shipping is about $35 a case, so $12 a case is a decent deal.

But as information, I send him a link to show that his price is in line, not cheaper than anyone else on the net, and in fact one of the merchants is significantly cheaper.

Along with the link, so not to appear as if I'm touting him as expensive, I say:

"but $150 is a good price from a good place like yours."

Then I get ready to send out a link to his Caymus and try and help this brick and mortar wine shop in their attempt to find success on the net. I'm going to buy some and tell my friends.

But it turns, quickly:

He plays cop:

thanks for the link...I sent it to Caymus. Caymus won't sell to them again

This reminds me of the advertising lawyers who instead of working on their own practice, file Bar Complaints against other successful advertising lawyers in order to gain an advantage.

Then this barrage of desperation and anger:

If you find someone willing to cut you that many deals, then you're looking at a merchant who cuts too many corners.

Read: Be afraid of everyone online who has a cheaper price than me - their wine is baaaaad.

Well if you're willing to pay lowest price for improperly stored product that someone's trying to dump on the market go for it.

Read: fine, go use someone else and buy their crappy wine. My wine is the best, because everyone who offers lower prices sucks.

I don't know why you're trying to prove a point here; I'm offering one of the best prices on the internet anyway.

No, you're not. You're offering a similar price to many merchants. Rule #1 of the net: be honest, today would be a good day to begin using that philosophy.

I mean your argument is that paying a couple bucks more than lowest price isn't worth an investment in the wine's provenance.

Investment in the "wine's provenance?"

Not interested in a discussion of the business, he ends with this send off:

In any case if you're not interested in buying my wine, don't waste my time"

OK, I'm not interested in buying your wine.

After I call him a jerk, he says:

I don't know why you can't be polite.

Heh heh.

This exchange is like many I've heard over the years between bad lawyers and potential clients.

There are lawyers who peddle their services through talent and confidence in their work, and there are those who lie to clients, and bad mouth other lawyers just to get the case.

Every good lawyer will say "I don't bad mouth other lawyers." The bad, desperate, talentless lawyers will make the potential client believe they are making a big mistake if they don't hire Mr. Bad mouthing make me feel stupid lawyer.

There's nothing wrong with engaging in a debate over fees and business philosophies. Just yesterday a potential client asked why he should pay me more than the other lawyers he spoke with. If I am charging more, I should be able to justify why. I should not make the potential client feel bad for asking, nor get arrogant or make him feel that his case will be poorly handled by another lawyer.

Clients often tell me they didn't hire a lawyer because he bad-mouthed other lawyers. Clients and customers aren't stupid, they can tell when a lawyer and business owner is trying to make the sale through condescending comments, and statements of fear.

Monday, February 16, 2009

There were hundreds of artists, each with a booth. There were categories: jewelry, paintings, photography, sculpture, etc... Each artist was different. Some were solo artists, some were couples. Some were expensive, some were affordable. Some artists were friendly, others were hiding in the back of their booths seemingly uninterested in who was browsing.

Few people were buying.

What was selling? Necessities. The most profitable booth: the guy selling lemonade. There was also a moderate line for the Italian Ice. Kids love that.

I overheard conversations of artists saying they sold "nothing" all weekend, and many people were hiding their embarassment over a lack of funds by asking the artist "do you have a card?"

Then I noticed something interesting.

Many of these artists, in fact, most, needed to sell quite a bit of art to break even on their expenses for the booth, travel, motel. The stress was most likely overwhelming.

Then I looked across from the rows and rows of similar looking white tent booths to the grassy area across the street.

There I saw moving sculptures of animals made out of metal, moving their heads and other body parts by the power of the wind. They were colorful, different, and separate from the crowd.

The small alligator was $10,500.

"Who's buying this stuff in this economy" I thought.

Then it hit me.

This artist probably needed to sell one, maybe two pieces to make some money.

Out of over 150,000 people, someone had to buy.

He just needed one, maybe two.

Others, needed dozens just to break even.

Maybe he dropped the price a bit, maybe he put some people on payment plans, but he didn't need to do a volume business to make some money.

Sure, this guy probably wondered if anyone would make such a large purchase in this economy, but the odds were pretty good. No matter the economy, there's always people who will spend money. To find those people, you need to have something that attracts them.

He was different, and by being different he was able to charge a premium.

Friday, February 13, 2009

I wanted to pause this morning. Pause from client calls, document review, reading and responding to emails, to write about the plane crash last night.

50 people died from a plane crash in icy weather 5 miles from the runway at Buffalo's airport. The news media is doing their thing and stating the obvious, that this is a "terrible situation," that NTSB investigators will "pour over evidence to discover the cause" (Ice on the wing causing the plane to stall and go into a nose dive into a house), they will say every 2 minutes that "we don't want to speculate," as they speculate, and then later today or tomorrow we will be told that the investigation will take "a year." Neighbors will be interviewed, and "experts" from around the country will say their piece. New rules will come regarding I don't know, something about flying. The people who missed the flight or switched to another flight have already been found and told their chilling stories.

The timing of this plane crash makes some things obvious. It was a late Thursday night flight from Newark to Buffalo. What's obvious is that most people were going home. Home for the long weekend. Going home like this Florida law student. It was a short flight, meaning some probably didn't call their family to tell them they loved them, or call them about anything. A quick flight, skip and a jump, no big deal.

Now they're all dead.

I don't know who was on the plane, other than this law student and the widow of a 9/11 victim, but by the fact there were people on board means there were husbands, wives, fathers, mothers, sisters, brothers, kids, people going to celebrate something, people going to just see a friend.

A quick flight on an icy night, and now they're all dead.

These things bother me more and more. Maybe it's growing up, maybe it's having kids. I just can't imagine getting on a plane and never getting off.

I know a lot about flight, and airplanes having wanted to be a pilot in my adolecesent days. Bad weather makes for bad flights, and bad things can happen when a wing is covered in ice.

Anyway, just wanted to write a little about this crash (which will be referred to as an "accident" by the airline.)

Thursday, February 12, 2009

This is the impression some clients leave. That we are all rich. That their problems are not similiar to ours. That we have no mortgages, kids to raise, repairs to make on things, medical expenses, college tuition. We lawyers have none of these expenses, and to boot, should all operate as zero-interest banks.

It is those $100, $200, $300, $400 an hour rates, or the $5,000 requested as a retainer that leads clients to believe we are awash in cash. They discount the salary of the assistant, receptionist, the rent, telephone, and all the other things that go into running an office.

They express their issues in a way that leads you to want to say "me too," but you won't.

There are two types of lawyers, those that are needed for a problem, and those that are hired to prevent problems. No one wakes up in the morning and says "I think I'll hire a criminal defense lawyer." Other lawyers are hired when the client gets around to it, like a estate planning lawyer when a will is needed.

Hiring the "I've got a problem" lawyer never comes at a convenient time. We "I've got a problem" lawyers understand that. Understand though, that most lawyers, are not "rich," and it is not the lawyer's responsibility to finance your life while trying to help you. The "you don't understand" line is tired and old. The "but I have to pay my kid's tuition" line doesn't go that far either.

Want a loan? Use a credit card, borrow from family. Don't, borrow from me or make me feel like I should loan you the fee for months because "you" have expenses.

Wednesday, February 11, 2009

BigLaw is dismantling, government agencies (prosecutor, public defender) have hiring freezes, going solo out of law school is a scary proposition (that I don't recommend), and small firms are staying small.

What's out there for law students?

The students I talk to can't find a job.

Why would someone hiring pick a law student over a 10 year laid-off lawyer who will work for the same money and need no training?

Sunday, February 8, 2009

Getting in to and graduating from law school is hard enough. Studying for and taking the Bar was to me, the most difficult work I ever did as a student.

The Bar Application, easy.

Easy because the first day at law school, I was advised of the importance of my law school application as it pertained to the Bar Application. From that day forward I just knew the importance of any application I was going to fill out.

In my practice now, I refer to the Bar Application as "the charging document."

It contains the basis of the allegations against my clients and the subject of the requisite hearing. A hearing that will determine whether admission to the Florida Bar is granted, deferred, or further examined.

Want to avoid the need for a hearing? Well, sometimes you can't. Cheating, arrests, financial responsibility issues, lawsuits, mental health, and other personal issues at times require a hearing.

But I have seen some things that are just unnecessary and cause hearings to be requested, not because of the conduct, but because of the following:

[1] Failure to disclose on the Bar Application.

If you were arrested, detained without a formal arrest, or had some encounter with someone with a badge and a gun, disclose.

If something asked on the application comes close to asking about something that happened, disclose.

Remember Nixon. It's not the conduct, it's the cover up.

[2] Failure to disclose on the law school application.

This can kill you. I have seen letters from law school deans that are extremely harsh - telling the Florida Bar that you are dishonest and commenting further on your credibility.

Disclose on the law school application, even though you think it will keep you from being accepted.

[3] Adding your opinion of what happened.

Straight forward fact telling, that's all that is needed. No one cares what you think about it.

Doing these three things won't necessarily keep you from having a hearing, but not doing them, pretty much guarantees one.

Wednesday, February 4, 2009

The Florida Supreme Court has determined in this Advisory Opinion that elected-but-not-yet-seated Circuit Court Judge William Abramson cannot take the bench because he is not a "Member of the Bar" in the sense that, well, being a "Member of the Bar" doesn't mean you can be a "suspended Member of the Bar."

I disagree.

If you don't know about this case, oh man, talk about a controversial judicial race. Just take a quick read here

The Court correctly framed the issue as "whether suspended lawyers are “member[s] of the bar of Florida” for the purpose of satisfying the eligibility requirements for circuit court judge as specified in article V, section 8 of the Florida Constitution."

Section 8 provides: "No person is eligible for the office of justice of the supreme court or judge of a district court of appeal unless the person is, and has been for the preceding ten years, a member of the bar of Florida. No person is eligible for the office of circuit judge unless the person is, and has been for the preceding five years, a member of the bar of Florida."

The Court noted that under Florida Bar Rule 3-5.1(e), a suspended lawyer is a member of the Bar, but lacks the privilege to practice law, but that in adopting the Rules Regulating the Florida Bar, they did so 'to regulate the admission of persons to the practice of law and the discipline of persons admitted.'"

Here's where they make law: "We in no way intended for those rules and our disciplinary cases to define the phrase “a member of the bar of Florida” as used in article V, section 8."

To bolster their memory of the intent of the rule, they turn to the law of other states to, as they say "determine the “common sense understanding” of a provision in our constitution."

The Court states: "Based on cases from other state supreme courts, it is the 'common sense understanding' that where Bar membership is an eligibility requirement for judicial office, one may not be a judge in a court in which one’s own practice as a lawyer would be disallowed. See State ex rel. Willis v. Monfort, 159 P. 889, 891 (Wash. 1916) ( “[N]o person is eligible to the office of judge of the superior court unless . . . he is, at the time he becomes a candidate or is required to qualify as such judge, entitled to practice in the courts of this state.”); see also Johnson v. State Bar of Cal., 73 P.2d 1191, 1193 (Cal. 1937) (“Certainly an attorney who has been suspended from the practice of law during this period cannot successfully claim to be eligible.”); Hanson v. Cornell, 12 P.2d 802, 804 (Kan. 1932) (“Obviously the Legislature intended that for one to be qualified to hold the office of judge . . . his admission to practice law created a status which continued and under which he was engaged in the active and continuous practice of law . . . .”); Cornett v. Judicial Ret. & Removal Comm’n, 625 S.W.2d 564 (Ky. 1981) (stating that a person under temporary suspension from the practice of law cannot serve as a judge).

"Therefore, (author's note: 'because other states say this,') we determine that article V, section 8 of the Florida Constitution contemplates that “a member of the bar of Florida” is a member with the privilege to practice law. It follows that a lawyer who is suspended from the practice of law fails to satisfy the constitutional eligibility requirements for a circuit courtjudgeship."

My opinion: Abramson should be commissioned as a circuit court judge. The laws should be strictly construed unless it would render an absurd result. When a lawyer becomes a judge they are not subject to Bar discipline except in limited circumstances. Member of the Bar is different than Member of the Bar in Good Standing. There are members in good standing, suspended members, and then there are those that are disbarred. When you are suspended, you are subject to the Rules Regulating the Florida Bar even though you cannot practice, so you are still a member of the Bar. When Florida has to look to other states to determine the definition of "member of the Bar," it is clear that the term is not properly defined that that should enure to the benefit of Abramson.

Tuesday, February 3, 2009

It begins with this premise: Young attorneys are often led to the field of law because of a seductive proposition: You can do anything with a law degree.

The next and absolutely true statement: "Unfortunately, a law degree does not even guarantee an opportunity in law, let alone an entree into a different field."

Then the appropriate dig to BigLaw associates (I give this a 8 on a scale of 1-10): "A multitude of smart folks pass the bar, only to find themselves stuck behind prefabricated desks without much interest in the subject matter that fills their days. Their brains overloaded with statutes and data, many wonder why opportunities fail to abound."Here's the crux: Although you may be able to do anything with a law degree, a law degree and solid experience alone will not do it for you. For those young attorneys who dream of becoming top lawyers, the key is to be three parts lawyer and one part marketing agent.

Author Shai Littlejohn doesn't think of marketing as advertising or direct mail pieces, more like "the total sum and breadth of your work history, reputation, involvement, initiative and personal values. Brand you is riding on whether people think you are competent, committed, available and willing to offer counsel. Sometimes for free. And often after hours."

This is my favorite line of this must-read article:

"Top lawyers know that, while most of their colleagues look forward to relaxing at home at the end of the day, the highest-achieving ones do not focus on when one day ends and another begins. They look forward to the firm reception or foundation meeting at night because they are acutely aware that a little extra involvement is what moves the ordinarily competent attorney into the extraordinary, top attorney column. Even when not working, the top attorneys remain available and on call, considering the interests of their employers and communities at all times."